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It is proposed that both in the Federation level courts and equivalent level courts it would be appropriate to allocate a separate group of judges-appellatees to implement judicial control over the decisions taken by preliminary investigation control judges.
The most criticized matter of judicial monitoring activities of existing federal judges is that they show a high ‘being satisfied’ rate for motions of investigators for arrests of suspects and the accused, for the conduct of investigative or other procedural actions infringing on the rights and interests of the man and the citizen protected by the Constitution of the Russian Federation, and, conversely, a low ‘being satisfied’ rate for complaints filed with the court by persons interested in accordance with 125 of the Criminal Procedure Code of the RF. So, of course, it is important that the guiding Resolution of the Plenum of the Supreme Court sets a ‘different coordinate system’ of their activities evaluation for preliminary investigation control judges and judges–appellatees exercising judicial review at the pre-trial stage so that such judges were ‘registrars’ ( ‘punchers’) of investigators and investigators’ motions but on the basis of the existing legislation exercise effective judicial control over the observance of the principle of legitimacy, protection of rights and freedoms of the man and the citizen in the criminal proceedings.
It is necessary to state the following: all court errors in the exercise of judicial review at the pre-trial stages are a specific kind of judicial errors that often occur as a result of the conditions created for this investigative and prosecutorial errors and which can later manifest themselves at the trial of the criminal case on the merits until they are identified and corrected (if they are identified and corrected) in instances.
Thus, in the context of the considered here model approach to the modernization of controlsupervisory investigative mechanisms of eliminating errors in Russian criminal proceedings, we build ‘the model of dynamic judicial control’ of the preliminary investigation, which in the context of the strategies of the prosecution and the protection of human rights:
–extends the jurisdiction of the judicial control by the introduction of new types thereof −
‘the deposited control’, i.e. legalization at the pretrial stages, in a limited and clearly defined number of cases, of certain evidence, and ‘pretrial review – especially significant for evidence and consideration of the criminal case on the merits control activities at the stage of the appointment of the court session;
–strengthens the requirements for the ‘arrest’ control (collecting, checking and evaluation of evidence of the reasonableness of the suspicion of the suspect and the accused in the incriminated acts and his conduct in the course of criminal proceedings);
–reformats the ‘procedural’ control and ‘control over complaints’: redistributes from the court in favor of the prosecutor some control and supervisory powers thereby strengthening the existing control: the original ‘prosecutor's authorization’ of investigative and other procedural
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actions provided for in Art. 165 Code of Criminal Procedure of the RF, with the possibility of further appeal to the court under Article 125 of the Criminal Procedure Code of the Russian Federation of the prosecutor’s decisions on these issues;
– does not limit the action of ‘the control over complaints’ (for example, allows you to appeal against the decision to prosecute a defendant, etc.).
Functioning of the ‘the model of dynamic judicial control’ involves the improvement of the organizational structure of the activities of these judges (primarily, certain separation of these judiciary from federal judges hearing criminal cases on the merits, as well as per cassation and supervision).
It is in ‘the model of dynamic judicial control’ over the preliminary investigation we see an effective criminal-procedural mechanism of judicial review, the main direction of development of which is related to non-allowance of investigative errors, their detection, correction and prevention.
§2. Prosecutorial supervision in the mechanism of error elimination
In the system construction of the mechanism of control and supervisory activities of eliminating judicial errors at pre-trial stages of criminal proceedings the model of permanent prosecutorial supervision, in our view, includes a number of features:
The objective necessity and historical conditionality of prosecutorial supervision.
For many years, since the Soviet period, in the criminal proceedings there has been prosecutorial supervision as the sole mechanism for monitoring and supervision of compliance with the law at pre-trial stages. With the advent of the procedural figure of the head of the investigation department it became possible to talk about the second control mechanism – departmental. The judicial reform in Russia in the nineties of the last century formed a ‘controlsupervisory triad’: the judicial control was added to the existing supervisory and control mechanisms at the pre-trial stage – the prosecutor's supervision and departmental control.
For many years, the prosecutor's supervision has been considered the supreme supervision over the legality and the prosecutor was referred to as the ‘master’ of criminal proceedings: the prosecutor's authority was applied to arrest the suspects and the accused, the public prosecutor prolonged their terms of detention and he also extended the investigation of criminal cases, authorized the searches, had his own investigative unit, he could initiate criminal proceedings, revoke any decision of the investigator and the inquirer, give them written instructions with regard to cases under investigation, and, if desired, could himself fragmentally or fully investigate any criminal case, etc.
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The Prosecutor's Office can not be attributed to any branch of government, legislative (representative) or executive (presidential), or to the judiciary. This is a separate structure of federal government agencies.
The main purpose of the prosecutor's office is that it establishes any violation of laws, by whatever authority, officials of the authorities and take measures to eliminate them377. ‘In this case, the prosecutor's office facilitates the interaction of the authorities, their coordinated functioning as unified state authorities interested in respecting the laws in the state. These features appear to allow the prosecutor's office to be referred to the system of ‘checks and balances’.378
The specificity of the prosecutor's office, in the reasonable, in our opinion, opinion of V.B. Yastrebov, is that ‘the prosecutor's office is the only public body for which the supervision over compliance with the law is the meaning, the essence and foundation of activities.’379
On the basis of the prosecutor's office position in the system of public authorities, the proposal of Y.K. Yakimovich that ‘the Attorney General should be appointed by the Parliament on the proposal of the President agreed with the Russian highest judicial bodies. Such must be the order of the displacement of the Prosecutor General from his post as well.’ sounds of relevance here380.
Having said that, we can not agree with the position of .K. Yakimovich on the possibility of functioning in a federal state of two prosecutors systems – of federal and federated entities;
“Federal prosecutors should not have any relation to the supervision of compliance with the republican laws – for this the republics should form their own, not reporting to federal prosecutors, the prosecutor's offices’381. These proposals undermine the justified principle of unity and centralization of the organization and activities of the Prosecutor's Office (Art. 4 of the RF Law
‘On the Prosecutor's Office of the Russian Federation’), are contrary to the provisions of Art. 129 of the Russian Constitution.
The question of the prosecutor's office position, its organizational structure and activity is far from idle to criminal proceedings. Attempts to eliminate the prosecutor's oversight function turn it into only one of the parties (the prosecution) in criminal proceedings do not correspond to the real current needs.
The prosecutor's office in criminal proceedings can not be replaced by any state body (the introduction of judicial control institutions, institutional controls, the Parliamentary Commissioner
377Azarov V.I., Terekhin A.A. Acts of prosecutor response in Russian criminal trial. M.: Jurlitinform, 2014.
378Solovyev A.B., Tokareva M.E., Haliulin A.G. et al., op. cit. P. 18.
379Yastrebov V.B. Supervision over non–compliance with the law as the main function of the prosecutor’s office // Issues of perfection of prosecutor supervision. M., 1997. P. 15.
380Yakimovich Y.K. Selected articles. Tomsk, 1997, p. 34.
381Ibit. P.35.
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for Human Rights, etc.). It is only the prosecutor’s office that can effectively and professionally ensure constant monitoring of compliance with the law at all stages of criminal proceedings, which actually makes it possible to achieve the purpose of criminal proceedings, in a timely manner to identify and quickly correct and prevent both investigative and judicial errors.
Prosecutorial supervision is considered more effective than institutional control by 72.2% of the surveyed judges (as much by prosecutors themselves); in their opinion, the prosecutor increasingly enforces the observance of the rights of citizens in criminal proceedings because it does not belong to the investigating agencies382.
Institutional and comprehensive character of prosecutorial supervision
The investigator, the head of the investigating body, the inquirer, the head of the inquiry unit, the head of the body of inquiry are not departmentally subordinate to the prosecutor. The established system of criminal prosecution bodies gives the prosecutor the mission of the head of the prosecution with granting him respective supervising powers.
Currently the prosecutor does not fully exercise procedural leadership over investigators: the prosecutor's office now does not have its own investigative unit; prosecutors do not investigate criminal cases; the procedural superior of the investigator is the head of the investigative agency.
Yet in the modern model of prosecutorial supervision, the prosecutor exercises procedural guidance with respect to the inquirer, the head of the inquiry unit and the head of a body of inquiry. This, to some extent, is a paradox that in cases of grave and especially grave crimes under investigation of the investigator, prosecutor has been limited in supervisory functions, and in insignificant cases under the inquiry, he has full authority over the procedure. This is a strange compromise and a ‘sop’ to the prosecutor. But in the context of the detection, prevention and correction of errors of the inquirer (in fact – investigative errors) the procedural supervision of the prosecutor is only advantageous.
The written instructions of the prosecutor on the direction of the investigation, procedural actions and his other powers are one of the most effective ways the prosecutor can influence inquirers’ activities in the investigation of criminal cases.
Being an experienced lawyer, (and sometimes – and an experienced investigator as well), the prosecutor may predict the inquirer’s errors, detect them and in his instructions define the optimal program of solving and investigating the case, to focus the inquirer on prevention of these errors in the case or correction thereof.
382 Appendix № 44.
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To avoid investigative errors, the prosecutor as the procedural leader of the inquiry gives his approval to filing with the courts motions of the election, repeal or change of the preventive restrictive measure or another procedural action that is allowed on the basis of the court order; reverse illegal and groundless decisions of the inquirer; approves objections filed with the inquirer, as well as his self-rejections; removes the inquirer from further investigation if he violates the norms of the Code of Criminal Procedure of the RF; withdraws any criminal case from the body of inquiry and refers it to the investigator with a mandatory indication of the motives for such a transfer; approves the decision of the inquirer on the termination of the criminal case.
Undoubtedly, it all looks effectively in the context of detection, correction and prevention of errors during the initial inquiry. But the prosecutor should, within the powers granted to him, lead the procedural and preliminary investigation, and not inquiry.
In this regard, in our opinion, the prosecutor’s supervision over the preliminary investigation, which is a complex of organizational and legal mechanism, should include the following components:
–the prosecutor implementing the powers of the head of the prosecution through the implementation of procedural management of all preliminary investigation;
–the prosecutor implementing the powers of the head of the prosecution through the implementation of supervision over the compliance with laws by all officials of the preliminary investigation and inquiry.
The permanence ща prosecutorial supervision in the context of the prosecutor's powers as the head of the criminal investigation
Unlike judicial control, the prosecutor's supervision as institutional control is carried out by the prosecutor at the stage of initiating a criminal case and all stages of its preliminary investigation, i.e. permanently (continuously).
The modern public prosecutor's supervision in the detection, correction and prevention of errors in criminal proceedings takes a special position.
The recent reforms have significantly reduced the impact of public prosecutor's supervision in criminal proceedings. However, the prosecutor's power is still great. According to V.K. Gavlo and N.A. Dudko, ‘the most effective form of control of the investigation is the public prosecutor's supervision: it provides more rapid identification and removal of gaps and investigative errors’383.
383 Gavlo V.K., Dudko N.A. The institute of referral of cases by the court for further investigation needs improvement // Altai State University Izvestiya. 2001. №2. p. 45–50. Cit. from: Gavlo V.K. Selected works. Barnaul, 2011. P. 489– 502.
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Indeed, since the beginning of the judicial reform the argument that the prosecutor supervises the courts has disappeared. Gradually, the prosecutor started to lose his important powers in the preliminary investigation of criminal cases to the court and to the departmental supervisor (the chief of investigations, today – the head of the investigative body) .
Legal scholars debate the modern procedural status of the prosecutor in criminal proceedings.
Some scientists support a full or partial return of the prosecutor’s authority to oversee the preliminary investigation384.
Some scientists have expressed and continue to express serious concern about the collapse of authorities and powers of the prosecutor in the exercise of supervision over the preliminary investigation (with regard to the bodies of inquiry the prosecutor still keeps the old powers). According to A.B. Solovyev, ‘the amendments to the Code of Criminal Procedure of the RF make the prosecutor into a decorative figure, devoid of real possibilities to oversee the compliance with the laws by investigators. A kind of procedural vacuum emerged for this supervisory function. Moreover, the decisions of the legislator practically eliminated the control function at pretrial stages of criminal proceedings ‘385.
Other scientists believe that a return to the prosecutor's inquiry ‘is not possible’386.
In modern conditions, the prosecutor still has a fairly wide range of powers to ensure the legality of the preliminary investigation: he reverses illegal and groundless decisions of the investigator of initiating a criminal case or refusal to institute a criminal case, to suspend a criminal case or to terminate a criminal case; returns for further investigation a criminal case, received by him with the indictment; participates in the examination of the investigator’s petitions by the court on approval to carry out a number of investigative and legal procedural actions; provides the investigating authorities his requests to eliminate violations of the federal law; withdraws the criminal case from investigators of various departments and passes them to the investigators of the Investigative Committee of Russia; receives notices from the investigator of (because of the urgency thereof and without the court's permission) search, seizure in housing and other activities that require a general rule, a court approval, as well as copies of the decisions to initiate criminal
384Bulanova N. Legal regulation of procuratorial oversight of procedural activities of bodies of preliminary investigation // Criminal Law. 2009. №3. P.73–76; Nikitin E.L. The conceptual approach to the definition of the functions and powers of the prosecutor's office system in Russia // Bulletin of the Academy of General Prosecutor's Office. 2008. №6. p.60; Haliulin A.G. Powers of Attorney to oversee the procedural activities of the preliminary investigation // law. 2007. №9. p.15–20; Osyuk T. The prosecutor’s discretion in criminal proceedings // Legality.
2010. №3. p.3–9 et al.
385Solovyev A.B. The pissueoblem of the legality of the preliminary investigation is due to changes in the procedural status of the Attorney // Criminal proceedings. 2007. №3. p.14.
386Shaifer S.A. Reform of preliminary investigation: the legal status and the relationship of the prosecutor and the head of the investigative body // State and right. 2009. №4. P.55.
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cases, to bring charges, etc.; signs statistical cards on the detection of the crime (in practice this means that without the consent of the prosecutor no criminal case can be initiated), on the results of the investigation (they contain all the information about the preliminary investigation), etc.
These powers in different ways evidence functional orientation of the activities of the prosecutor in criminal proceedings.
The question of the prosecutor's functions have always been of interest to interest legal scholars387.
In the opinion of L.M. Volodina388, the prosecutor in the criminal trial performs his main function –the law observance supervision and at the same time carries out the function of criminal prosecution, procedural supervision over criminal investigations and public prosecution in court.
N.P. Kirillova largely defines the prosecutor as the public procurator, but she notes that
‘the adversarial principle does not imply retaining the public prosecution at all costs and by any means, and the realization of the human rights prosecutor's function provides for the obligation of the public procurator to drop the charges if they were not confirmed in the court’389.
V.S. Shadrin was in favor of a strong prosecutorial authority, especially in the face of the prosecutor for the effective prosecution of perpetrators390.
A.S. Barabash says that the prosecutor comes to proceedings not as a procurator but as a representative of the supervisory authority because the prosecutor did not participate in the study of evidence by the procedural supervision of the investigation or within the approval of the indictment in the case391.
A.D Boykov believed that the prosecutor in criminal proceedings governing ‘the most acute social relations that determine the individual and the state relations in the repressive sphere’392 must have special powers in the implementation of proper supervision of the preliminary investigation and inquiry.
It should be noted that no matter how we describe the functions of the prosecutor, the powers that he currently has let him to a certain extent affect the process of identifying, correcting and preventing errors in the criminal procedural activity of investigators and inquirers.
387Ryabinin T.K. On the relation between the functions of the prosecutor in the criminal trial // justice issues in criminal cases in modern Russia: Theory and Practice: Proc. scientific. articles. Part 1. Kursk, 2007. p.109–117; Bushkovskaya E.N. Attorney Supervision of procedural activities of the investigator and the investigator in the pre–trial proceedings. Dis for Cand. Jurid. Sciences. Mosk. Univ Interior Ministry. M., 2011.; Buglaeva E.A., Vinnitsa L.V. Participation of the prosecutor during the preliminary investigation. M.: Jurlitinform 2013.
388Volodina L.M. Problems of the criminal process: law, theory, practice. M., 2006, pp. 308–313.
389Kirillov N.P. Procedural features of professional participants of the controversial trial of criminal cases. St.Pb., 2007. 408 p. 96.
390Shadrin V.S. Criminal procedure activity of the prosecutor and the bodies of the preliminary investigation. St.Pb., 2005. p.12.
391Barabash A.S. The nature of the Russian criminal process, the goal of criminal – procedural activity and establishment. St.Pb., 2005. p.40–45.
392Boykov A.D. The third power in Russia. M., 1997, pp. 62–63.
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Practitioners responding to the question: ‘In what forms of control (control subjects): selfscrutiny of the investigator, the departmental control of the head of the investigative body, the prosecutor's supervision on the part of the supervising prosecutor, the judicial control of the court at pre-trial stages, the activities of the court during the trial stage, the defense lawyer activity are the errors of the investigator and inquirer most effectively identified?”, rated the supervising prosecutor in the ranking order as follows:
–judges put the prosecutor in the 1st place (most often);
–prosecutors also gave the supervising prosecutor the 1st place (most often);
–investigators, the investigative body leaders attributed the prosecutor the 3 place out of 6 subjects of control;
–defense lawyers gave the supervising prosecutor the 4th place in the ranking of the effectiveness of the number six controllers.
Consequently, there is every reason to say that the public prosecutor's supervision over the two ‘special status’ subjects of criminal procedure is recognized as the most effective tool in the detection, correction and prevention of errors, and the position of other subjects of criminal procedure – investigators, heads of the investigative body, defense lawyers not ‘giving the prosecutor the first place’ shows the need to improve the public prosecutor's supervision technologies. Especially because there are serious reasons reducing its efficiency: 61.1% of prosecutors and 33.3% of judges believe that the prosecutor has insufficient procedural powers in the implementation of prosecutorial supervision over the preliminary investigation of criminal cases; 56.4% of investigators and investigation leaders, 44.4% of judges, 27.8% of defense lawyers explain the low efficiency of prosecutor's supervision by the fact that a significant number of prosecutors currently has no experience in investigative work; 40.7% of lawyers, 33.3% of investigators associated the decrease in the effectiveness of prosecutorial supervision with the implementation of it in terms of conflict interaction of investigation and prosecution; 90.2% of lawyers, 59.0% of investigators and investigation leaders, 38.9% of the judges shortages in the public prosecutor's supervision explain through the lack of proper management ( ‘work on indicators’, ‘lack of constant interaction with the investigators and inquirers’, etc.). Corruption component in the work of prosecutors hindering the effectiveness of prosecutorial supervision was mentioned by only 5.1% of respondents-investigators393.
The powers of the prosecutor are stated in Articles 29 – 31 of the RF Law ‘On Prosecutor's Office of the Russian Federation’, as well as in article 37 of the Criminal Procedure Code of the RF.
393 Appendix №44.
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It seems relevant to pay attention to them, especially in terms of their use to eliminate
errors.
In Russia in 2011 – 2015, prosecutors revealed from 4 to 6 million violations of the law annually on pretrial stages of criminal proceedings. Of these, more than half are violations when receiving, recording and reviewing reports of crimes394. Therefore, it is the prosecutor's activity that did not allow officials of the criminal justice agencies hide crimes from accounting.
In accordance with part 4 of article 146 of the RF Criminal Procedure Code, a copy of the decision to institute criminal proceedings, on the refusal to institute criminal proceedings shall be immediately sent to the prosecutor by the head of the investigating body, the investigator, the inquirer. And if the prosecutor finds the decision to institute criminal proceedings, the refusal to initiate criminal proceedings unlawful and unreasonable, he is entitled to no later than 24 hours from the receipt of the materials that served as the basis for a criminal case or refusal to institute criminal proceedings, reverse them with a reasoned decision ruling to initiate criminal proceedings or the refusal to initiate criminal proceedings.
In 2011 – 2015, prosecutors personally and on their initiative reversed from 2.3 to 2.6 million decisions of investigators and inquirers not to institute criminal proceedings395. These figures testify to the offensive activity of the prosecution to identify, correct and prevent errors on the investigative stage of initiating a criminal case. But, at the same time, the analysis of this situation gives reason to believe that, in practice, the specific ‘conveyor technology’ works that allows investigators and inquirers to use this prosecutorial discretion to prolong for various reasons the stage of initiating the criminal case.
It is interesting to note that the statistics of prosecutors’ reversals of decisions to institute criminal proceedings is significantly less than the above: in 2011 – 2015 in Russia, prosecutors reversed between 19 and 35 500 decisions of investigators and inquirers to initiate the criminal case396. This clearly shows that prosecutors reduce the probability of errors in during the investigation, rather than pre-investigation inspection.
With such powers at the start of a criminal investigation, the prosecutor has the ability to discern, for example, in the materials submitted to the investigator, inquirer by operationalinvestigative units for the division on initiating a criminal case, the provocation. And, for example, for materials related to the statements of persons about the use of illegal methods (first of all – physical violence) on the part of law enforcement officials, the prosecutor has the ability in his
394Appendix №41.
395Appendix №41.
396Appendix №41.
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decision to promptly raise the question whether to institute criminal proceedings on the grounds of the offense, under Article 286 of the Criminal Procedure Code of the RF.
It is worth being noted that at present a topical issue of the return of powers to the prosecutor by his own decree to initiate criminal proceedings and to transfer them to the investigator to conduct investigation is still open.
44.4% of prosecutors, 27.8% of judges, 20.3% of defense lawyers, 17.9% of investigators and investigation leaders interviewed positively supported the powers of the prosecutor to initiate criminal proceedings (prosecution)397.
In our view, this power should be returned to the prosecutor, as the procedure of preliminary investigation of the report of a crime is always more effective than pre-investigation checks. The tendency to expand the list of investigative actions that it is now possible to carry out prior to the initiation of the criminal case, the debate on the abolition of all stages of a criminal case and conducting a full investigation into all allegations of criminal events, as is the case in Germany and other countries, a return to the prosecutor the authority to initiate a criminal case (criminal prosecution) by his decision are to be consistent in the context of the gradual return of the prosecutor’s powers, lost since 2007, which will have a positive impact on the efficiency and quality of timely initiated criminal investigations, and, ultimately, will help to minimize errors in criminal cases.
Now while the prosecutor has the power to make a reasoned decision about sending the relevant materials to the investigative body or the body of inquiry to address the issue of criminal prosecution of the facts of the violation of the criminal law (it should be noted that it is the prosecutor that gets a significant amount of information on the use by law enforcement of illegal methods; violations of the legitimacy in the sphere of observance of the rights and freedoms of man and citizen, occupational safety and health, the economy, housing, federal security, interethnic relations and extremism, corruption, etc.)398.
For example, in 2011 –. 2015, under sec. 2 Part 2 of Article 37 of the Code of Criminal Procedure of the RF, the prosecutor directed from 28.7 to 34.2 thousand materials to the preliminary investigation bodies. Investigators initiated from 24.5 to 26.1 thousand criminal cases. This is another argument in favor of the return of the powers of the prosecutor to initiate criminal cases399.
The prosecutor has the right to request the bodies of inquiry and investigative bodies to eliminate violations of the federal law committed in the course of the inquiry or preliminary
397Appendix №44.
398Appendix №40.
399Appendix №40.